Palmerston North Crown prosecutor Ben Vanderkolk breached obligations in murder case, investigation finds

An investigation into a top Crown lawyer involved in high-profile murder cases including that of Scott Guy and the Lundy killings has found he breached his obligations relating to a different case.

One of the more serious findings includes that the lawyer asked police to omit from a job sheet that he and his assistant prosecutor had been present at a meeting with a witness in the murder prosecution he was conducting.

An independent assessment into Crown prosecutor Ben Vanderkolk’s actions has found he had “deep remorse” for his procedural failings in the 2017-2020 murder case, and that he was unlikely to repeat such conduct.

Vanderkolk, the Crown solicitor for Palmerston North, was recently ordered to pay costs for a court case after failing to disclose information in a murder inquiry, in which the murder charges were ultimately dismissed.

The case was for the death of Palmiro MacDonald in 2016.

“The proceedings were long and complex but the result was that all the charges were ultimately withdrawn,” Crown Law said in a statement today.

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When two of the men who were charged over the death later took their costs application to the High Court, Justice Ellis found there were three procedural failures for which Vanderkolk was “at least partially responsible”.

The first related to a letter a witness gave to police, and the timing and circumstances of disclosing that letter to the defence. The second related to redacting the name of another witness in a statement, despite the name having significance to the credibility of two witnesses. The third failure related to a meeting between Vanderkolk, his assistant prosecutor, and a witness. After that meeting, Vanderkolk instructed the police to omit the fact he and his assistant were present from a job sheet recording the meeting.

As part of the review into these failures, the Solicitor-General engaged Tony Randerson CNZM KC, former Judge of the Court of Appeal, to independently assess these matters, make factual findings, and report back.

Randerson interviewed 16 people, including the defence lawyer, police, other Crown lawyers, and Vanderkolk.

“The trial of the three men charged with the murder of Mr Macdonald was a difficult and demanding exercise for any Crown Solicitor,” Randerson said in his assessment.

Crown prosecutor Ben Vanderkolk was subject to a review by the Solicitor-General. File photo / Mark Mitchell

“The proceeding in the High Court stretched over a lengthy period and required frequent resort to the court to deal with numerous issues including repeated concerns by defence counsel that adequate disclosure had not been made. It is against that background and, in light of the law and practice at the time of the relevant events, that the issues defined . . . have been addressed.”

He found Vanderkolk should have made inquiries of police after the defence lawyer raised the possibility one of the witnesses had received some sort of inducement or benefit from police when he was sentenced on a different matter.

It was found that none of the police officers involved nor Vanderkolk recalled the existence of the letter when it was raised by defence counsel in November 2017, but it was disclosed during pretrial hearings in April 2018. The delay had a relatively minor impact on the proceeding given the short lapse of time before the letter was disclosed.

There was no evidence of bad faith or intentional non-disclosure, Crown Law said.

“The Crown Solicitor had acted with the proper objective of protecting Witness A. He genuinely, but mistakenly, believed that any disclosure relevant to Witness A’s credibility could occur after anonymity for Witness A had been determined.”

As for the failure relating to redacting one of the witness’ names, Randerson did not attribute any fault to Vanderkolk, noting the complex investigation involved more than 100 witnesses and tens of thousands of documents.

As for the allegation about having his presence at a witness meeting omitted from the police job sheet, Randerson found this to be a “serious” action.

He found it resulted in an incomplete record of the meeting, and breached Vanderkolk’s obligation to uphold the highest standards of personal and professional conduct, and to act as a minister of justice under the Crown Solicitors: Terms of Office.

Randerson said in his assessment there were mitigating factors, including that the action did not prejudice the defence, and that this information was disclosed, unprompted, at the costs hearing. He also noted there were no attempts to disguise the information when later reporting to the Deputy Solicitor-General about another matter.

Solicitor General Una Jagose accepted Vanderkolk had breached his obligations. File photo / Mark Mitchell

“Mr Randerson accepted the Crown Solicitor’s decision was made on the spur of the moment and accepted his expression of deep regret about what occurred,” Crown Law said.

His assessment found there was no material issue of non-disclosure and that Vanderkolk took his disclosure obligations seriously.

The Solicitor-General, Una Jagose KC, then used the assessment to conduct her own review of the matter.

Jagose accepted Vanderkolk had breached his obligations, and also accepted the mitigating factors and the finding that Vanderkolk was deeply remorseful and there was no likelihood he would repeat this conduct.

“We are satisfied that he has learnt from what happened in this case,” she said. “No further action by Crown Law is planned.”

Crown Law said Jagose and Vanderkolk have discussed areas for practice improvements, to learn from what happened in this case and ensure it does not happen again.

“As part of the Solicitor-General’s oversight role, the Crown Solicitor will continue to be supported by the Deputy Solicitor-General and her team in implementing these processes,” Crown Law said.

Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.